Karnataka High Court

Kalyan Kumar Cheruvu S/O ... vs Srinivas Enterprises Through Its ... on 8 June, 2022

Bench: Rajendra Badamikar

                           1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 08TH DAY OF JUNE 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


              MFA No.200307/2014 (MV)
                        C/w
                MFA No.200034/2014

IN MFA N.200307/2014

BETWEEN:

KALYAN KUMAR CHERUVU
S/O: SHIVANAGESHWARA RAO,
AGE: 35 YEARS, OCC: SUPERVISOR,
R/O: NEAR GOVT. HOSPITAL,
GULBARGA-585101.
                                           .....APPELLANT

(BY SRI. BABU H.METAGUDDA, ADVOCATE)

AND:

1.     SRINIVAS ENTERPRISES THROUGH
       ITS PROPRIETOR,
       SRI. N.RAMABABU S/O NOT KNOWN,
       AGE: MAJOR, OCC: CONTRACTOR,
       R/O F.1 BLOCK, DARSHAN APARTMENT,
       P & T COLONY, OLD JEWARGI ROAD,
       GULBARGA-585 101.
                            2



2.   THE DIVISIONAL MANAGER,
     ORIENTAL INSURANCE CO. LTD.,
     N.G.COMPLEX, 1ST FLOOR,
     OPP: MINI VIDHAN SOUDHA,
     GULBARGA-585101.
                                       .....RESPONDENTS

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)


      THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
IN MVC NO.893/12 ON THE FILE OF THE PRL. SENOR CIVIL
JUDGE & MACT AT GULBARGA. ALLOW THIS APPEAL AND
MODIFY THE JUDGMENT AND AWARD DATED 27.09.2013
PASSED IN MVC NO.893/2012 BY THE PRL. CIVIL JUDGE
(SR.DN.) & MACT AT GULBAGA.       AND ENHANCING THE
COMPENSATION FROM RS.2,53,000/- WITH 6% INTEREST TO
RS.5,00,000/- WITH 12% INTEREST AND ETC.


IN MFA N.200034/2014

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL OFFICE BY ITS
DIVISIONAL MANAGER,
N.G.COMPLEX, 1ST FLOOR,
OPPOSITE MINI VIDHANA SOUDHA,
GULBARGA.
(NOW, REPRESENTED THROUGH
AUTHORISED SIGNATORY,
D.O, GULBARGA)
                                           .....APPELLANT

(BY SMT. PREET PATIL MELKUNDI, ADVOCATE)
                             3



AND:

1.     KALYAN KUMAR CHERUVU
       S/O SHIVANAGESHWARA RAO,
       AGE: 35 YEARS, OCC: SUPERVISOR,
       NEAR GOVT. HOSPITAL,
       GULBARGA-585 101.

2.     SRINIVAS ENTERPRISES,
       THRUGH TS PROPRIETOR,
       SRI. N.RAMABABU S/O NOT KNOWN,
       AGE: MAJOR, OCC: CONTRACTOR,
       R/O: F.1 BLOCK, DARSHAN APARTMENT,
       P & T COLONY, OLD JEWARGI ROAD,
       GULBARGA-585101.
                                        .....RESPONDENTS

(BY SRI. BABU H.METAGUDDA, ADVOCATE FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT)


       THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
AND ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 27.09.2013 IN MVC
NO.893/2012 PASSED BY THE PRL. SENIOR CIVIL           & MACT,
GULBARGA, WITH EXEMPLARY COSTS.



       THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR    JUDGMENT    ON    01.06.2022,   COMING     ON     FOR
PRONOUNCEMENT     OF    JUDGMENT THIS    DAY,   THE    COURT
DELIVERED THE FOLLOWING:
                            4




                      JUDGMENT

These two appeals are filed by the Insurance

Company challenging the judgment and award dated

27.09.2013 passed in MVC No.893/2012 by the Prl.

Senior Civil Judge & MACT-Gulbarga, whereby the

tribunal has awarded compensation of Rs.2,53,000/-

to the appellants-petitioners.

2. MFA No.200034/2014 is filed by the

Insurance Company challenging the liability and also

on the ground that the compensation awarded is on

higher side, while MFA No.200307/2014 is filed by the

claimant-petitioner seeking enhancement of

compensation. As these appeals are arising out of the

same judgment and award passed by the tribunal,

they are heard together and common order is being

passed.

3. For the sake of convenience, parties are

referred with the ranks occupied by them before the

Tribunal.

4. The brief facts leading to the case are that

on 19.03.2011, the petitioner Kalyan kumar had been

to Afzalpur from Gulbarga for his work and after

completing his work, he was returning to Gulbarga on

motorcycle bearing registration No.KA-32/X-1162 and

he was traveling as a pillion rider. The said motorcycle

is being driven by one Satyaraju and at about 3.00

p.m., near two kilometers away from Mallabad village

on Afzalpur-Gulbarga main road, the rider of the

motorcycle rode the vehicle in a rash and negligent

manner. At that time, the tempo trax Gama vehicle

bearing registration No.MH-13/AH-0518 came from

opposite direction driven by its driver in a rash and

negligent manner, as a result both the vehicles

collided with each other. Due to this impact, the

petitioner fell down and sustained fracture of shaft of

right femur and fracture of both bones of right leg,

middle phalynx of right index finger and middle finger

and other injuries. He was immediately shifted to

Government General Hospital, Afzalpur and then he

was admitted in Apollo Hospital at Hyderabad, wherein

he was operated and discharged on 01.04.2011. That

he has incurred expenses of more than Rs.1,00,000/-,

towards medical expenses. He was aged about 33

years and earning Rs.40,000/- per annum by doing a

Supervisor work and he is permanently disabled. That

the accident is because of actionable negligence on

the part of the rider of the motorcycle and respondent

No.1 being the owner and respondent No.2 being the

insurer are liable to pay compensation. Hence, he has

filed claim petition under Section 163(A) of M.V.Act,

seeking compensation.

5. The respondent No.1 did not appeared and

placed ex-parte.

6. The respondent No.2-Insurer appeared and

filed objections denying the age, occupation and

income of the petitioner. It is also contended that the

accident has not occurred due to actionable

negligence on the part of the rider of the motorcycle

and denied other contents. It is contended that the

charge sheet is submitted against the driver of the

tempo trax bearing registration No.MH-13/AH-0518

and the owner and insurer of the tempo trax were not

made as necessary parties. The respondent No.2

further asserts that the rider of the motorcycle was

not possessing valid and effective driving license.

Hence, the Insurance Company disputed the claim and

sought for dismissal of the claim petition.

7. After appreciating the oral and

documentary evidence, the tribunal has allowed the

petition and awarded compensation of Rs.2,53,000/-

to the petitioner with interest @ 6% p.a.

8. This award is challenged by the petitioner

in MFA No.200307/2014, wherein he has sought for

enhancement of compensation.

9. Heard the arguments advanced by the

learned counsel appearing for the appellant-Insurance

Company and the counsel for respondents/petitioners

in both the appeals. Perused the records.

10. The Insurance Company has filed MFA

No.200034/2014 challenging the liability as well as

quantum.

11. Learned counsel for the claimant-petitioner

would contend that the compensation awarded by the

tribunal is on lower side under the head of pain and

suffering which requires to be enhanced and the

compensation awarded to the tune of Rs.15,000/-

under the medical expenses is also on lower side and

the disability taken is also on lower side. It is

contended that future medical expenses were not

considered. Hence, he would seek for enhancement of

compensation to the tune of Rs.5,00,000/-.

12. Per contra, the learned counsel appearing

for the Insurance Company contended that there is no

negligence on the part of rider of two wheeler and

argued that the accident is because of actionable

negligence on the part of driver of offending vehicle

Tempo trax. According to her, as per the investigation

report, the rider of the motorcycle was riding the

vehicle without valid and effective driving license.

Hence, she would contend that notice has been served

to respondent No.1 to produce the driving license of

the rider and the same has not been produced and

adverse inference is required to be drawn. Hence, she

would dispute the liability. Hence, she would contend

that the tribunal ought to have considered this aspect

and at least an order regarding pay and recovery

ought to have been passed. She would also contend

that the disability taken @ 27% is on higher side and

the tribunal has erred in awarding compensation

under other heads, which is not permissible since the

petition has been under Section 163(A) of M.V.Act.

13. Having heard the arguments and after

perusing the records, it is evident that the claimant-

petitioner who was the pillion rider did sustain injuries

in the road traffic accident. Since the petition has

been filed under Section 163(A) of M.V.Act, the rash

and negligent act is no relevancy and only the use of

vehicle is required to be considered. Admittedly, the

vehicle on which the petitioner was traveling was

involved in the accident. Under such circumstances,

the contention of non-impleading the owner and

insurer of the tempo trax has no relevancy. Further,

it is also important to note here that in the accident,

the rider of the motorcycle Satyaraju has succumbed

and this fact is evident from the charge sheet at

Ex.P2. Further, this fact is also admitted by the

petitioner during his evidence that Satyaraju

succumbed because of the accidental injuries.

14. Learned counsel for the appellant-

Insurance Company all along contended that the rider

of the motorcycle was not possessing driving license

and hence there should be an order of pay and

recovery. It is contended that notice has been issued

to respondent No.1 to produce the driving license but

the same was not complied with. The respondent

No.1-owner of the vehicle did not contest the matter.

Though the rider Satyaraju has died in the accident, it

is the duty of the owner to ascertain that the rider was

possessing valid and effective driving license. In case

he allow the person who was not possessing valid

driving license to drive his vehicle, then he is required

to face the consequences. He did not contest the

matter and further did not respond to the notice

issued in this regard to produce the driving license by

the insurer. Under such circumstances, an adverse

inference is required to be drawn against the

respondent No.1, that the rider of the motorcycle

deceased Satyaraju was not possessing any valid and

effective driving license. However, in view of the

decision of the Hon'ble Apex Court in the case of

Pappu and others Vs. Vinod Kumar Lamba and

another reported in 2018 ACJ 690, the Insurance

Company is liable to pay compensation with a liberty

to recover the same from the owner-respondent No.1,

as there is no dispute regarding coverage of

insurance.

15. The claimant-petitioner has suffered four

fractures. PW.2 is the doctor and his evidence disclose

that he has assessed the disability on the basis of the

records only. He admits that he is not a treated

doctor. The wound certificate disclose that the

petitioner has suffered fractures of right femur, right

tibia, middle and right finger of right hand. He has

given the disability of 5% to upper limb, 34% to the

lower limb and 37% to the whole body. What is the

base for giving the disability to the extent of 37% is

not at all forthcoming. No doubt, the petitioner did

suffer fractures but there is no amputation and the

petition has been filed under Section 163(A) of

M.V.Act. Considering these facts and circumstances,

the disability given by the doctor is on higher side as

he was not a treated doctor and the same cannot be

acceptable. Even, the disability of 37% is taken note

off to the upper limb and lower limb, then to the

whole body it will be 1/3rd as per medical

jurisprudence.

16. The records also disclose that there is mal-

united fracture. The tribunal has taken the disability to

27% without any basis, which appears to be on higher

side. However, it is a fact that the petitioner has

suffered four fractures and considering these four

fractures, in my considered opinion, the disability can

be taken to the whole body to the extent of 15%. He

has also claimed that his annual income @

Rs.40,000/- p.a. Since, the petitioner is aged about 33

years and as such the multiplier 16 is applicable.

Hence, the loss of future income would works out to

Rs.96,000/- (Rs.40,000/- x 16 x 15/100).

17. In this context the learned counsel for

appellant/claimant has placed reliance on the decision

of the Hon'ble Supreme Court in the case of Yadava

Kumar Vs. National Insurance Co. Ltd., and

another, reported in 2011 Kant. MAC 90, and

contended that the compensation towards pain and

suffering, loss of income during treatment, medical

expenses, loss of amenities, is permissible under

Section 163(A) of M.V.Act, as ordered by the Hon'ble

Apex Court.

18. In the instant case, the tribunal has

awarded compensation of Rs.25,000/- under the head

of pain and suffering, Rs.10,000/- towards attendant

charges, Rs.10,000/- towards mental shock and

agony, Rs.10,000/- towards special food and diet and

Rs.10,000/- towards future medical expenses.

19. It is to be noted here that the claim

petition has been filed under Section 163(A) of

M.V.Act and hence as per II Schedule in case of

number of injuries only Rs.5,000/- under the head of

pain and suffering is permissible and medical

expenses cannot exceed Rs.15,000/-. In the instant

case, medical expenses were granted to the tune of

Rs.15,000/- and the learned counsel would place

reliance on a decision of the Hon'ble Supreme Court in

the case of Rajendra Vs. Pradeep Patwari and

Others, reported in 2009 ACJ 2864, but it does not

clarifies that excess medical expenses have been

awarded by the Hon'ble Apex Court.

20. On the basis of the decision of the Hon'ble

Apex Court in Yadava Kumar's case (supra), the

learned counsel for appellant-claimant argued that the

compensation under other heads is permissible. But it

is to be noted here that, in the said case the Hon'ble

Apex Court has exercised its discretion under Article

142 of the Constitution of India and has granted the

compensation under the various heads. The discretion

exercised by the Hon'ble Apex Court under Article 142

cannot be treated as a precedent and such powers

cannot be exercised by any other Courts. Hence, the

said decision would not help the petitioner in any way

in enhancing the compensation regarding pain and

suffering etc. The compensation awarded by the

tribunal under the head of pain and suffering,

attendant charges, food and nourishment and agony,

future medical expenses are not permissible under

Section 163(A) of M.V.Act. Hence, the petitioner is

entitled for the compensation of Rs.15,000/- under

the head of medical expenses.

21. Further, the petitioner is entitled for

compensation of Rs.5,000/- only under the head of

pain and suffering.

22. Hence, the petitioner is entitled for total

compensation of Rs.1,16,000/- as against

Rs.2,53,000/- awarded by the tribunal under the

following heads is as under;

Sl.No.          Heads                      Amount
1.         Pain & suffering                Rs.5,000/-
2.         Medical expenses                Rs.15,000/-
3.         Loss of future income           Rs.96,000/-
                Total                      Rs.1,16,000/-

23. Hence, the appellant-Insurance Company is

liable to pay compensation with a liberty to recover

the same from the respondent No.1-owner of the

vehicle. Hence, MFA No.200034/2014 filed by the

Insurance Company needs to be allowed in part while

MFA No.200307/2014 filed by the petitioner needs to

be dismissed.

24. Accordingly, I proceed to pass the

following;

ORDER

(a) MFA No.200034/2014 is allowed in part. The

impugned judgment and award passed in